Citation Nr: 9819290
Decision Date: 06/24/98 Archive Date: 07/06/98
DOCKET NO. 96-51 580 ) DATE
)
)
On appeal from the Department of Veterans Affairs (VA)
Regional Office (RO) in Philadelphia, Pennsylvania
THE ISSUE
Entitlement to non-service-connected death pension.
ATTORNEY FOR THE BOARD
Kimberly E. Harrison Osborne
INTRODUCTION
The veteran had active military service from February 1943 to
September 1943. He is deceased, and the appellant is his
widow. This matter comes before the Board of Veterans’
Appeals (Board) on appeal from an August 1996 decision by the
RO which, based on a finding of excessive income, denied the
claim for non-service-connected death pension. The Board’s
current decision is limited to the question of whether the
appellant met the income eligibility requirements for death
pension for the year following her August 1996 claim.
In May 1989, the RO notified the appellant that the veteran’s
death was not service related. The appellant did not file a
timely appeal. Thus, the RO’s May 1989 decision is final.
In a March 1998 rating decision, the RO denied the
appellant’s application to reopen the claim of service
connection for cause of the veteran’s death. To date, a
notice of disagreement has not been received regarding the
March 1998 rating decision. Consequently, the Board does not
have jurisdiction to review this matter.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that she is entitled to death pension
benefits.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant’s countable
annual income as of August 9, 1996 was a bar to receipt of
improved death pension benefits.
FINDINGS OF FACT
1. The veteran died in 1987; the appellant is the veteran’s
widow, and she has no dependents.
2. A claim for VA improved death pension benefits as
surviving spouse of the veteran was received from the
appellant on August 9, 1996.
3. As of August 9, 1996, the appellant’s countable annual
income was $6612.
4. As of December 1, 1995, the maximum annual rate of death
pension for a surviving spouse with no dependents was $5527.
CONCLUSION OF LAW
The appellant’s countable income as of August 1996 was a bar
to receipt of improved death pension benefits as the
surviving spouse of the veteran. 38 U.S.C.A. §§ 1503, 1541,
5312 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.23, 3.271,
3.272, 3.273 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran died on May [redacted], 1987. The appellant is his widow
and she has no dependents. In May 1989, the appellant was
awarded death pension. In October 1992, the RO terminated
the appellant’s award of death pension because her income was
in excess of the maximum annual death pension rate. On
August 9, 1996, she filed another claim for death pension.
She reported that her income consisted of Social Security
benefits (at the annual rate of $6612), and she reported no
deductions.
Among other requirements, non-service-connected death pension
may be paid to a surviving spouse of a veteran only if annual
income is not in excess of the maximum annual pension rate
which is established every year. 38 U.S.C.A. §§ 1503, 1541,
5312; 38 C.F.R. §§ 3.23, 3.271, 3.272, 3.273. In determining
countable income, payments of any kind from any source shall
be counted as income during the 12-month annualization period
in which received unless specifically excluded under 38
C.F.R. § 3.272. Id. For purposes of the present case, the
Board observes that Social Security income is not
specifically excluded under 38 C.F.R. § 3.272 and is
therefore included as countable income.
Effective December 1, 1995, the maximum annual rate of death
pension for a surviving spouse without dependents was $5527.
38 C.F.R. § 3.23; VA ADJUDICATION AND PROCEDURE MANUAL M21-1,
Part I, Change 21, Appendix B (March 7, 1996).
In the VA Form 21-534 (death pension claim) received by the
RO on August 9, 1996, the appellant reported that she
received Social Security benefits. The RO properly
calculated the appellant’s income over the next twelve months
(the annualization period) to be $6612. 38 C.F.R. §
3.271(a). The appellant does not dispute the $6612 amount.
It is clear that the appellant’s countable annual income of
$6612 as of August 1996 was far in excess of the then
effective maximum annual pension rate of $5527 for a
surviving spouse with no dependents. Under the facts of this
case, the Board must therefore find that the appellant’s
countable income was a bar to receipt of improved death
pension benefits. Sabonis v. Brown, 6 Vet. App. 426 (1994).
The appellant should notify the RO regarding possible
entitlement should her countable income decrease in the
future.
ORDER
The claim for non-service-connected death pension is denied.
L. W. TOBIN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -